Judge comes down hard on NSA phone tactics

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval.”

Those are the words of Judge Richard J. Leon of the Federal District Court of the District of Columbia as he denounced the National Security Agency yesterday in his ruling on Klayman vs. Obama. The judge, a George W. Bush appointee, ordered the NSA to stop collecting data on the personal calls of the two plaintiffs and destroy the records it has gathered on them. He stayed his injunction, giving the government time to appeal.

The case is the first where a federal judge not on the Foreign Intelligence Surveillance Court, which authorized and rubber-stamps the operations of the once-secret surveillance program, has ruled on the NSA’s data collection on a non-criminal defendant.

In his 68-page ruling, Judge Leon said the NSA program that is systematically keeping records of all Americans’ phone calls most likely violates the Constitution.

The statement that leaps out of his concluding pages:

” … the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature.”

That’s the acid test, the single biggest indictment of both the NSA’s spying and the TSA’s invasive searches of airline passengers. Of the entire PATRIOT Act, for that matter. If these agencies want to make a case for their increasingly invasive and unconstitutional overreach, they’d better be able to show they have actually stopped imminent terrorist attacks. To date, neither agency has done that.

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Correction: To date, NSA spying has caught three terrorists — Najibullah Zazi and two friends who plotted to blow up subways in New York City. Hardly numbers to justify the size and scope of NSA operations.

23 replies

Indeed. If we were in the kind of danger our government contends (using it as an excuse for its actions), you’d expect to see a never-ending parade of captured terrorists being convicted in our courts.

Well, Bush gets the credit for initiating the Patriot Act. I am sure some information has helped them to foil an attack or two but the real question is where do we draw the line. Where do we say this is no longer protecting our country. It is invading the privacy and freedom upon which our government is founded? Hugs, Barbara

I’ll give Bush the blame for the PATRIOT Act, not the credit. And if it and the government managed to catch any terrorists in this country, they weren’t forthcoming about it at the congressional hearings on the subject. To date the only ones we’ve heard about are in my note at the end of the post. A grand total of three. All the others have been thwarted by an alert public or local police. If the NSA tactics aren’t catching terrorists, then there’s no excuse, reason, or validation for the tactics.

As for drawing the line, the Constitution is the line. And the NSA has knowingly, repeatedly crossed that line. The Constitution is not to be set aside whenever the government finds it inconvenient.

I don’t think so either. Even the congressional oversight committees that were supposed to be informed about it said they didn’t know. The NSA has been operating in secret, with no one knowing enough to restrict it and rein it in. Hopefully that’s about to change, but bureaucrats, once they gain power, never willingly give it up. And how will we ever really know what a secret agency is doing … ???

I have the same mixed feelings I have over any whistleblower — concern that a person would violate the trust of his or her employer and go public with corporate secrets, but gratitude that serious wrongdoing was exposed. The US government is bigger than any corporation, and the stakes are a lot higher, but I still think “whistleblower” is the proper term (as long as he doesn’t start sharing the secrets with our enemies).

As much as I’d like to believe this will somehow lead to changes in the policy PT, what actually I expect to result from this is more like: “‘Anonymous’ Tip Exposes Scandalous Behavior Of Federal District Court Judge – News At 11” 😕

I see two aspects of this. On the one hand, I think sensitivities over privacy are generally overrated. When the nation was founded it made all kinds of sense to consider a person’s house their castle, including privacy. But those were the days when communications were either oral or by writing in letters and books. There were no charge cards, no email, heck, no computers. Now we have all that stuff, and social media too, and it is all part of modern life. I have yet to meet anyone who feels like giving up any of it over privacy concerns and it’s unrealistic to expect, for example, businesses not to try to track people’s spending habits and the like. Other things tracked are pedophiles, felons relative to gun ownership, and public safety statistics. It’s a different world now and it’s mostly for the better. Anyone who wants to track where I go, for what it’s worth, is going to be pretty bored.

But that brings me to the second aspect: secrecy. That does bother me because it means there’s no check on mischief, and the problem at the heart of it is classification under the rubric of national security. I served on active duty in the Navy for 22 years (26 if you count four as a Midshipman, USN) and I routinely saw classification applied broadly and with abandon for all of that time. You see, when it’s time to classify there’s no advocate for the opposite argument, i.e., for why something should not be classified. What does “national security” encompass? Seems it can be anything. The unspoken rule was, when in doubt, classify. Loose lips sink ships. The Commies are listening. Now, 9/11 has only intensified the problem, fueled by public fear, busted budgets, and passed into laws like the Patriot Act. If anything can be classified, nobody is safe. There must be oversight and there must be public transparency. A secret panel of Judges where there is no advocate for the public is hardly transparency. The problem is not whether the power has been misused so much as the potential for future mischief. I’m with Judge Leon on this. Meanwhile, I’d like to be able to take my little penknife with me again the next time I fly. Let’s everybody stand back and get some perspective on this stuff.

I’ve mentioned in the past that I think there’s a BIG difference between the privacy we knowingly and willingly give up when we use all our modern communications devices, social networks, bank accounts, business dealings, etc. — and the private information the government steals from us without our knowledge or permission.

I agree completely on the secrecy thing, however. All manner of mischief can and does take place under the guise of secrecy. Most certainly the NSA abuses will continue, and probably worsen (“give them an inch, they’ll take a mile”) in the future if they aren’t somehow reined in.

Yes, perspective is the issue. But I think you mean the difference between secrecy and privacy. To me the perspective thing is that the PATRIOT Act, NSA, TSA, etc. were all a gross overreaction, the result of fear and panic, to a threat not nearly as large or widespread or imminent as the government keeps telling us it is. And they will keep telling us that because those gigantic agencies now have to sustain themselves, justify themselves. With jobs and money at stake, it’s obvious what the future holds. Whether or not you agree with his methods, Snowden did us a favor.

Agreed, Ima. I’m in favor of jury-nullification when appropriate. Problem here is that some classification is needed. As we all know, wars have been decided by secrets both lost and kept. It’s a conundrum.

Wish the government would stop assuming people are up to no good, and guilty, or “might” be planning to do something horrid sometime, maybe…
Doesn’t seem reasonable or what this country was founded on.